The Standing Question Nobody's Talking About
Three days after filing their lawsuit, Students for Fair Admissions made an unusual move that reveals a hidden weakness in their case against Kamehameha Schools.
Something Unusual Happened
On October 20, 2025, Students for Fair Admissions filed their lawsuit against Kamehameha Schools. Three days later—on October 23—they filed something else: a notice claiming their lawsuit raises constitutional questions about federal civil rights law.
That's fast. Remarkably fast.
Most lawsuits don't immediately escalate to constitutional challenges. You'd typically argue your case under the statute first, and only raise constitutional questions if you lose. But SFFA went straight to "this law might be unconstitutional" before Kamehameha even filed a response.
Why?
The most likely answer: SFFA knows they have a standing problem, and they need the federal government's help to fix it.
What Is Standing, and Why Does It Matter?
Standing is the legal requirement that plaintiffs must have actually suffered an injury—not a hypothetical one, not a future one, but a real, concrete harm that happened to them.
It's one of the most fundamental rules in federal court. You can't sue just because you don't like something. You can't sue just because a law seems unfair. You have to show that you, personally, were injured by the thing you're challenging.
This matters because standing problems are fatal. If you lack standing, the court must dismiss your case—regardless of how strong your legal arguments are. The merits don't matter if you can't get through the courthouse door.
And here's where SFFA's case gets interesting.
The Families Who Didn't Apply
SFFA's lawsuit is brought on behalf of two families in Hawaii. Let's look at what the complaint actually says about them.
Family A has a daughter currently in ninth grade. Before the September 2025 application deadline, they "reviewed Kamehameha's application and determined how they would answer each question." But they didn't submit it. Why? Because "Kamehameha accepts no non-native Hawaiians," so the family "refused to put the daughter through the time, effort, and humiliation of going through that futile process."
Family B has a daughter currently in second grade. They also reviewed the application and figured out what they would say. But they didn't apply either, for the same reason: the process would be "futile."
Both families say they want their daughters to attend Kamehameha. But both families also say they want their daughters to attend "an integrated Kamehameha"—not face "the ostracization, bullying, and harassment that come from being the only non-native in an otherwise segregated school."
Read that language carefully. They're not saying "we want our daughters to attend Kamehameha." They're saying "we want our daughters to attend a different version of Kamehameha that doesn't exist yet."
The Standing Problem
This creates a significant standing issue.
Courts have generally been skeptical of "we didn't apply because it would be futile" arguments. The Supreme Court has increasingly emphasized that standing requires concrete injuries, not speculative ones. In a 2021 case called TransUnion v. Ramirez, the Court stressed that federal courts exist to redress actual harms, not hypothetical concerns.
There's technically a "futility exception" to the exhaustion requirement—but it's narrow, and it requires showing that application would be genuinely pointless. When a school has admitted exactly zero non-preferred applicants for 15+ years, that's decent evidence of futility. But combined with the "integrated school" language, it creates an awkward question: Would these families actually attend even if they won?
The complaint says Family A's daughter is in ninth grade and Family B's daughter is in second grade. If this litigation takes the normal 2-3 years, Family A's daughter will have graduated from high school. Family B's daughter won't be old enough to attend until the case is over.
This is where organizational standing becomes crucial—and where SFFA might have a problem.
The Ghost of 2007
SFFA isn't the first to challenge Kamehameha's admissions policy. In 2003, a family sued under the pseudonym "John Doe." The Ninth Circuit upheld Kamehameha's policy 8-7 in 2006. The family petitioned the Supreme Court for review.
Around that time, Kamehameha settled. They paid the family $7 million to drop the case.
Think about that number. Seven million dollars. In 2007 money—about $10.5 million today. After winning 8-7 in the circuit.
When another family tried to file the same lawsuit in 2007, Kamehameha fought to force them to reveal their identities—knowing full well the threats and harassment that would follow. The district court agreed, and when the family refused to expose themselves, their case was dismissed.
This history creates two problems for SFFA:
First, it shows that individual plaintiffs can be bought off or intimidated into dropping their cases. Organizations like SFFA exist partly to solve this problem—but only if they have proper standing.
Second, it shows why families might legitimately fear applying. The backlash in 2003 was severe. The backlash now—judging from the threats against SFFA's president—suggests nothing has changed.
The Harassment Is Real—and Documented
The complaint catalogs extensive threats and harassment directed at SFFA's president, Edward Blum, since the website launched in September 2025. These aren't abstract concerns—they're concrete, documented threats.
Examples from emails and social media (quoted directly from the complaint):
"I would absolutely beat the shit out of you if I ever saw you."
"I hope you fall on a sharp knife and choke."
"Dox Blums info, I'll go end this problem right now"
"Someone gotta take one for da team and get that ed blum punk."
The complaint also documents that two Republican state legislators flew to Virginia to confront Blum in person, filming themselves attempting to find him. At rallies in Hawaii with thousands of supporters, officials called for the community to "fight these encroachments" from "folks on the mainland."
The Ninth Circuit's own opinions in the 2006-2010 cases acknowledged this problem. Judge Reinhardt's dissent noted that both lawsuits "unfolded in a racially charged atmosphere" where the U.S. Attorney had to "warn the public that violence based on race is a federal offense." The court documented Hawaii's "Kill Haole Day" culture and systematic harassment of white students in public schools—so severe that in 2008, the U.S. Department of Education ordered corrective action.
This creates a powerful factual record for why families might legitimately refuse to apply: It's not just that admission is futile, but that the backlash from trying could be severe.
Why DOJ Intervention Solves Everything
When the federal government intervenes in a case, it brings its own independent standing. The Department of Justice doesn't need to show it personally suffered injury. It has:
- Parens patriae authority (representing the interests of citizens)
- Statutory authority to enforce civil rights laws
- Institutional legitimacy that individual plaintiffs lack
More importantly, the government can't be bought off. It won't age out before the case is decided. It won't face personal threats or harassment. It won't lose interest or run out of money.
And once DOJ is in the case, standing challenges against the other plaintiffs become largely irrelevant. The case continues even if SFFA's standing is questionable.
The Strategic Timeline
Now look at the timing:
That's not enough time to even see if Kamehameha will challenge standing. That's barely enough time to file the notice itself.
The only reason to move this fast is if you already know you need DOJ intervention before the defendant even responds.
Compare this to SFFA's other cases. In their Harvard lawsuit, they didn't raise constitutional challenges to Title VI until much later in the litigation. They argued the statutory claim first, and only escalated to constitutional questions when necessary.
Here, they went constitutional immediately.
What SFFA Asked For
In their constitutional notice, SFFA gave DOJ four options for how to intervene:
- Argue the 2006 case didn't actually create an exception to § 1981
- Argue the 2006 interpretation was wrong
- Argue any exception to § 1981 would be unconstitutional
- Defend the exception
Three of those four options help SFFA's case. Only the fourth hurts them.
That's clever framing. SFFA made it as easy as possible for a Trump DOJ to intervene on their side—while creating a procedural mechanism that bootstraps government standing onto their potentially shaky case.
What This Tells Us
SFFA is being strategically smart here. They learned from 2003 and 2007.
They know:
- Individual plaintiffs can be bought off or intimidated
- Standing challenges can be fatal
- Kamehameha will use every procedural tool available
- The threats and harassment make it nearly impossible to find plaintiffs willing to go public
So they built a structural solution: Get DOJ involved immediately, before standing becomes an issue.
The three-day timeline isn't sloppiness or overconfidence. It's SFFA showing their cards. They're saying: "We know we might have a standing problem. We're fixing it now."
Whether this strategy works depends entirely on what happens by December 22, when DOJ must decide whether to intervene. The Trump administration's known hostility to race-conscious policies suggests they probably will.
But the fact that SFFA needed this bailout in the first place tells us something important: They're not as confident in their case as their complaint suggests.
What Happens Next
The timeline is clear:
If DOJ intervenes on SFFA's side, this case transforms from a private lawsuit into a federal policy battle. The standing questions become footnotes. The government's institutional weight backs SFFA's challenge.
If DOJ doesn't intervene—or worse, intervenes to defend Kamehameha—SFFA's standing problems move to center stage. Kamehameha will almost certainly file a motion to dismiss for lack of standing, arguing that families who never applied and who want a "different version" of the school haven't suffered concrete injury.
Watch December 22. That's when we'll know which version of this case we're getting.